Every person wishes to have freedom of thought, conscience and speech to take part in public decision making-illustrate and explain.

1. Introduction:

Man is a social being living in a society with his free will. He/she has a total freedom of speech and action but that must be appreciated by the constitution of that country and shouldn’t be forbidden by the law of that country. There are different types of rights and obligations for every single citizen which can be differentiated by intellectual, political, economic, judicial, to the freedom of expression, equity and justice.

Free speech is our most basic and our most contested right. It is a crucial freedom because it is how we guard all of our additional rights and liberties. If we could not converse openly about the policies and actions of government, then we would have no proficient way to take part in the democratic process or protest when we supposed governmental behavior dying out our security or our freedom. Speech clearly includes words and certainly we have the right to criticize the government.

It is universally acknowledged that the right to freedom of expression and speech is a foundational human right of the greatest importance. It is a central cohesive source of democracy, Key to the protection of all human rights and fundamental to human dignity of one’s own right. At the same time, it is also universally recognized that it is not an absolute right[1], there are no society free from restriction of freedom of speech and even every democracy has developed some system of limitation on freedom of expression and speech. The debate regarding freedom of expression is both wide reaching and evolving constantly in response to the progress of the human mind, technological modernization and a globalised media, community practices and standards, and political and judicial responses. The deep-seated thought is that the freedom of expression is intended to protect and develop democratic ideals.[2]

However, every country has its own constitution which is comprised of laws. It is set by the government of that country and it’s defined as a regulatory system. A constitution is a set of fundamental principles or established laws according to which a state or an organization is commanded. When these principles are written down into a single or set of legal documents, those documents comprise a written constitution. A constitution will usually define the rights and freedom of citizens, rights with which the government cannot lawfully interfere.[3]

 2. Explanation and Illustration:

Speech is given as a gift to mankind by the God. A human being conveys his feelings, sentiments and thought to others through speech. For that reason freedom of speech and expression is a natural right, which a human being attains on birth. It is a fundamental right. “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” proclaims the Universal Declaration of Human Rights (1948).

As a rational being, man desires to do many things. But in a civil society his desires have to be controlled, regulated and reconciled with the exercise of analogous desires by other individuals. Therefore, the assurance of each of the above right is restricted by the Constitution in the greater interest of the community.[4]

Freedom of speech and expression is ensured in the Constitution of the People’s Republic of Bangladesh.  In the article 39 (1, 2) of chapter-3 of this constitution these have been stated:

39 (1) Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech

39 (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense –

a) the right of every citizen of freedom of speech and expression; (b) freedom of the press, are guaranteed.

In the constitution of Bangladesh, these statements can be seen in Part lll (The Republic), Article 39(1, 2).[5]

Article 39 (1, 2) of Bangladesh Constitution states that every citizen has the right to freedom of speech and expression. It is the right to articulate one’s own convictions and opinions candidly by words of mouth, writing, printing, pictures or any other mode. It therefore includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression indicates also publication and thus the freedom of press is included in this category. Free dissemination of ideas is the necessary objective and this may be done on the platform or through the press. This distribution of ideas is secured by freedom of circulation. Liberty of circulation is important to that freedom as the liberty of publication. Certainly, without transmission the publication would be of little value. The freedom of speech and expression includes liberty to publicize not one’s views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.

Freedom of expression has some wide special reasons to serve[6]:

  • It helps an individual to attain self-fulfillment.
  • It aids in the discovery of truth.
  • It strengthens the ability of an individual in participating in decision-making.
  • It presents a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
  • All members of society would be able to form their own beliefs and speak them freely to others.

In addition, the fundamental standard involved here is the people’s right to know and consequently freedom of speech and expression should obtain generous support from all those who believe in the participation of people in the administration

The agreement of freedom of expression set out in Article 39 of the Bangladesh constitution safeguard ‘freedom of thought and conscience, and of speech’. The State guarantees liberty or freedom for the exercise of the above right, subject to public order and morality.  The State shall endeavor to make sure that organs of public opinion, such as the radio, the press, the cinema, while safeguarding their rightful liberty of expression, as well as criticism of Government policy, shall not be used to undercut public order or morality or the authority of the State[7]. The publication or utterance of odious, rebellious, or impolite matter is an offence which shall be punishable in accordance with law. So this freedom must be exercised with surveillance and care must be taken not to trench on the rights of other citizens or to jeopardize public interest.[8]

 Grounds of Restrictions

Freedom of expression has always been subject to limitations and each of the arguments for freedom of expression holds some restrictions. Restrictions on the freedom of speech and expression can be imposed on the basis of clause (2) of article 39. These are discussed bellow:-

First of all, the restriction can be imposed on freedom of speech and expression in the significance of security of state under article 39(2). “Security of state” refers to serious and provoked forms of public order (rebellion, waging war against the State, revolution). As a result, speeches or expression of an individual which encourage the order of violent crimes such as murder would undercut the security of State.

Secondly, the purpose behind the provision of friendly relation with foreign states is to forbid unhindered malevolent propaganda against a foreign friendly state that may endanger the preservation of good relations between Bangladesh and that state. Analogous provision is present in other Constitution of the world. Interest of friendly relations with foreign States, would not justify the repression of fair criticism of foreign policy of the Government. The Foreign Relations act (NO. XII OF 1932) is against the publication of any kind of statement that can harm friendly relationship between the Bangladesh government and governments of the other foreign countries[9].

Thirdly, Public order is an appearance of wide suggestion and implies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.” This is something more than ordinary preservation of law and order which is the same with public peace, safety and tranquility. Whatever thing that disturbs public tranquility or public peace agitates public order. Thus communal disturbances and strikes promoted with the sole object of accusing disorder among workmen are offences against public order. Public order therefore implies deficiency of violence as well as an orderly state of affairs in which citizens can serenely follow their regular avocation of life. Public order includes public safety too and therefore creating inner disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its peripheral aspect ‘public safety’ means protection of the country from foreign antagonism.

The words in the interest of public order include not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. There must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.[10]

Fourthly, the words ‘morality or decency’ are words of broad purpose. The distribution or exhibition of repugnant words in public places is proscribed. Any speech or expression that is offensive to moral principles in public places is prohibited. There is no fix standard for this. This standard changes from time to time and place to place.

Fifthly, if the freedom of speech and expression exceeds the reasonable and fair limit and amounts to contempt of court, restriction on it can be imposed.  The ‘contempt of court’ can be the ‘civil contempt’ or ‘criminal contempt.’[11]

Finally, the word defamation refers to a proclamation, which injures a man’s reputation, amounts to defamation. This is nothing but a statement that hurts a persons’ reputation. It is consisting of exposing a man to hate, mockery or contempt.[12] Another ground, incitement to an offence, was also added in the constitution. Freedom of speech and expression cannot grant a right to stimulate people to commit offence. The word ‘offence’ (an act or instance of offending) is delineated as any act or exclusion made punishable by law for the time being in force.

 3. Recommendation

Freedom of expression is universally acknowledged. Without it democracy cannot work properly. It is essential to have the right to freedom of speech and expression in enabling democracy to work and public participation in decision-making. It is not possible for citizens to exercise their right to vote successfully or to take part in public decision-making if they do not have free access to information and ideas and also do not have the capacity to express their views liberally.

Freedom of expression is basically a right which should be supported to the utmost extent possible given its significant role in democratic system and public involvement in political life. There may be certain extreme forms of expression that can tarnish the image of the government or anything that can give rise to anarchy or massive violence or any speech that can harass innocent people need to be truncated for the safety of other human rights. Limiting freedom of expression in such situations is always a fine balancing act. The government has to be very careful changing any fundamentals and should review the legal provisions and compare with international standards to bring them at the same level.

 4. Conclusion:

It can be easily concluded from the research that one of the most important fundamental right is the right to freedom of speech and expression. Every person wishes to have freedom of thought, conscience and speech to take part in public decision making.  It includes passing one’s views by some medium e.g. words, writing, audiovisual instrumentalities, advertisements as well as other communication channels. It includes right to information, freedom of press too as this fundamental right has a vast scope. The correctness of freedom speech and expression can be established by how efficaciously it can control the actions of different sectors of society. Law often has to be in a middle course to keep balance as there is a chance to collide between different rights, usually are not at the cost of justice.

[1] The Independent, 21 Feburary 2006, Verkaik R, Why freedom of speech has never been an absolute right, http://www.independent.co.uk/news/world/europe/irving-gets-three-years-jail-in-austria-for-holocaust-denial-467280.html, accessed 09 May 2011

[2] Kumar, B. (2007, April). Freedom of speech and its linkage to media. Retrieved from http://www.scribd.com/doc/42279892/Freedom-of-Speech

[3] See in Constitution. (n.d.). Retrieved from http://www.freebase.com/view/en/constitution

[4] Madhok, S. (2008, September 03). Freedom of speech and expression. Retrieved from http://www.articlesbase.com/national-state-local-articles/freedom-of-speech-and-expression-546864.html

[5] See in Constitution of Bangladesh. (n.d.). Retrieved from http://en.wikipedia.org/wiki/Constitution_of_Bangladesh

[6] Madhok, S. (2008, September 03). Freedom of speech and expression. Retrieved from http://www.articlesbase.com/national-state-local-articles/freedom-of-speech-and-expression-546864.html

[7] Bacik, I. (2003). Free Speech, the Common Good and the Rights Debate. 27 Pearse Street, Dublin 2. Retrieved from http://www.servat.unibe.ch/icl/ei00000_.html

[8] Singhi, S. (n.d.). Freedom of Speech and Expression. Retrieved from http://www.goforthelaw.com/articles/fromlawstu/article16.htm

[9]The foreign relations act, 1932. Retrieved from  http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=158

[10] Public Order Act, 1986. (n.d.).  1986 chapter 64, http://www.legislation.gov.uk/ukpga/1986/64

[11] The contempt of courts act, 1926,  Retrieved from http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=140

[12] the penal code, 1860, (act no. XLV of 1860). Retrieved from http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3540&vol=1&search=Defamation